September 2010

September 30, 2010

We previously discussed the UK firm that aggressively pursued copyright infringement claims -- and whose email system had been breached by hackers bent on revenge. The BBC has the news that the firm may be fined by UK privacy regulators. That's rubbing salt in the wound. Law Firm Risk Management Blog has analysis and related posts on compliance issues in law firms.

Jonathan Arons, a noted legal ethicist from San Francisco, has been hired by Mel Gibson's ex-significant-other, to analyze whether a settlement agreement that included destruction of taped conversations would be lawful. (Disclaimer: I know and respect Arons. And this is a serious legal ethics issue, even if Mel Gibson's involved.)

According to this WSJ article, being an adjunct is a highly desired marker of prestige. I hadn't really thought of it that way. I imagine that of all the required courses at law school, professional responsibility has by far the largest number of adjunct teachers. Interpretation 302-6 of the ABA's accreditation standards says that law schools "should involve members of the bench and bar" in the required course on professional responsibility.

This time out of New Jersey. But we've seen this issue pop up with Trutanich, Gillibrand, and others. Legislators are increasingly under duties to disclose financial ties, but lawyers generally keep their mouths shut about such things. Clients have an interest in not being dragged into partisan campaigns, but the public has an interest in knowing about potential conflicts and, if they care to, can draw moral conclusions about the candidate's choice of clients.

The linked article does a nice job of describing how some states are regulating this issue and how they do or do not accommodate the traditional norms of confidentiality.

First, the new opinion is a must read. (it will apparently be posted some time Wednesday morning at the ABA's Center for Professional Responsibility.) I've only skimmed it and although it doesn't break new ground, it does helpfully discuss issues of honesty, providing general information about law, how to handle website visitor inquiries, and disclaimers of duties to website visitors.

Second, Avvo has posted the actual opinion even thought the ABA has asserted copyright over it and asked that others not post it. Carolyn Elefant, at My Shingle, decided not to post it, out of respect for the ABA's request, but she says that she considered doing so as "civil disobedience." It's been a while since I've looked at this, but the copyright for ABA's formal opinions seems legit to me.

On the other hand, asserting copyright for model rules is a more complicated and difficult matter, because the very act of promulgating "model" enactments seems to presuppose that you want others to copy, use, adopt, and adapt your work product and because once any state enacts the rule, then the model and the law merge, and you can't assert a copyright over law. If I recall correctly, one of the leading ethics textbooks finessed this issue by including the model rules, but emphasizing that it was including Delaware's enactment of the rules. And I also seem to recall -- and if I'm wrong you'd do me a favor of pointing it out in the comments -- there was a split in the cases about the enforceability of copyrights for model statutes.

[edited] The question of revenue is significant, as it costs money to produce opinions and rules.

Criminal Defense Weekly looks at an appellate case out of Tennessee, Smith v. Tennessee, where criminal defense counsel committed ineffective assistance by failing to investigate and present a motion to recuse the sentencing judge.

How Appealing: Chief Justice Roberts sold his Pfizer shares, with two Pfizer cases now pending. I'm expecting to hear more about this as the cases draw near.

Law Firm Risk Management Blog takes a closer look at the disqualification we previously mentioned, where Winston Strawn was DQ'd from defending Pfizer in a $1 billion matter. Part of the problem was the wording of the advance waiver, but that wasn't the only problem.

Effland v. People, an appellate case from Colorado, held that the petitioner's statements should have been suppressed, but held that the prosecutor's comments to police officers that the petitioner was not entitled to counsel were not prosecutorial misconduct. Key graphs:

"Finally, Petitioner argues that the statements he made during the hospital room interrogation require suppression because of prosecutorial misconduct. Specifically, Petitioner argues that the Deputy District Attorney's statement to Officers Sheets and Hodgkin that Petitioner was not entitled to an attorney constituted a violation of the Colorado Rules of Professional Conduct and the American Bar Association's Standards for Criminal Justice.

"In United States v. Russell, 411 U.S. 423, 431-32 (1973), the United States Supreme Court wrote that it was theoretically possible for "the conduct of law enforcement agents [to be] so outrageous that due-process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." The court suggested that such conduct would have to violate "that `fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." Id. at 432 (quoting Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234, 246 (1960)). Colorado has specifically recognized the due-process claim of outrageous government conduct. People v. Medina, 51 P.3d 1006, 1011 (Colo. App. 2001). Colorado defines "outrageous government conduct" in the same manner described by the Court in Russell — "conduct that violates fundamental fairness and is shocking to the universal sense of justice." Id.

"Here, the issue of whether an individual who is not in custody has a constitutionally protected right to consult with counsel and, if so, the degree to which such a request must be honored, has not been decided by this court or the United States Supreme Court. Therefore, the Deputy District Attorney's statement was, at most, a reference to an undecided question of law. Further, the prosecutor's comment was made in the context of discussing the defendant's status, including the fact that he was not in legal custody and had not yet been charged with any criminal violation. In this context, the prosecutor was merely explaining that, in his opinion, Petitioner was not entitled to counsel. While it is debatable whether this was a misstatement of law, it did not rise to the level of outrageous government conduct. Cf.People v. Auld, 815 P.2d 956, 958 (Colo. App. 1991) (fictitious complaint drafted by district attorney for purpose of investigation of attorney suspected of receiving stolen property constituted outrageous government conduct). Accordingly, we affirm the court of appeals on this issue."

September 28, 2010

Case here. In this dependency appeal, the appellate court credited the trial court's concern that the IAC statement by the trial lawyer from the OPD might have been coercively procured by someone who supervised that lawyer. But the appellate court also emphasized that the resulting conflict of interest might not be imputed to the entire Office of Public Defender. Imputation could vary by division within the OPD. All in all, the case provides an interesting look at how conflicts law intersects with the bureaucratic realities within the OPD. Key paragraphs:

During a hearing to vacate Petitioner's earlier delinquency adjudication, the judge charged the Office of the Public Defender ("OPD") with "essentially post convicting [its] own lawyers" and ordered it to panel the case to an attorney wholly independent of that office. Petitioner was claiming ineffective assistance of counsel, and the judge was concerned that the self-damning affidavit submitted by Petitioner's previous OPD trial counsel was the product of coercion. While exercising her official duties in unrelated matters, the judge had learned of an internal OPD assessment program in which Baltimore County OPD juvenile lawyers were evaluated with the potential for adverse employment consequences. One of Petitioner's post-delinquency counsel was an investigator for the program and Petitioner's trial counsel may have been among those under evaluation. For these reasons, the judge struck the affidavit of trial counsel because there was an insufficient "Chinese Wall" separating Petitioner's trial counsel from his post-delinquency attorney. The issues in this appeal arise from that decision, as well as the judge's later refusal to recuse herself, and her denial of Petitioner's Motion to Vacate his delinquency adjudication. We shall affirm in part, and reverse in part.

[¶¶]

Four months after his delinquency hearing, Elrich filed a motion to vacate his delinquency finding on the grounds that his counsel was ineffective.At this juncture, Elrich was represented by the Chief Attorney (hereinafter referred to as "motions counsel" or "current counsel") of OPD's Juvenile Protection Division ("JPD"). Elrich alleged that previous counsel failed to adequately inform him of the nature of the charges, the consequences of a delinquency finding, the strength of the State's case, his right to a fair and impartial trial in which the State must prove the substance of its petition beyond a reasonable doubt, his ability to contest the Master's order, his right to suppress certain information, and his right not to testify at trial. Attached to the motion was a signed affidavit by Elrich's delinquency counsel ("the Affidavit"), who averred to, among other failures in her representation, "fail[ing] to zealously advise [Elrich] of the likelihood of success if the statement had been suppressed."

THE COURT: I, quite frankly, am troubled by the fact that someone who is in essence a supervisor has filed a — obtained an affidavit from somebody under their supervision of the nature of the affidavit that was filed in this case. I think that there is an ethical and conflict issue that I am raising because it is of concern to me.

* * *

[Motions Counsel]: I can clear up the Court's misinformation about the fact that I am not [delinquency counsel's] supervisor.

THE COURT: I'm aware of that but it was also my understanding from discussions within your office that there was a court watch of sorts where you and others came around and evaluated performance of lawyers in Baltimore County and that as a result of that, certain things happened within the Baltimore County office.

[Motions Counsel]: That your Honor has that knowledge means that someone from my office has had ex parte communications with the Court.

THE COURT: No. I have that knowledge actually by talking to the public defender on other issues unrelated to this case who talked about the supervision project that was done, so I didn't have ex parte communications about this case. I, quite frankly, am troubled that you would say that I did.

But I did have communication with your office where it was described to me that there was a supervision project, a court watch of sorts. As a result of that, various things happened. One of the things in that discussion were concerns about certain cases that people watched and evaluated. From the description that was provided to me in that context, this would appear to be one of those cases. So to then have an affidavit from the lawyer who was assigned done, presumably at the request of someone in your — in the office, and filed, is troublesome to me.

* * *

[Motions Counsel]: [W]e did not write that affidavit. We did not. In fact, I believe if the Court heard from [delinquency counsel], the Court would understand that we did write an affidavit. [Elrich's delinquency counsel] took exception with the affidavit that we wrote and she wrote her own. That is the affidavit that appears attached to the motion that was filed in this case.

THE COURT: It doesn't change the circumstances that you all are essentially post convicting your own lawyers.

* * *

[Motions Counsel]: I am not sure I understand what the problem is.

THE COURT: You don't see a conflict?

[Motions Counsel]: If your Honor is suggesting that [delinquency counsel] signed this affidavit because she was afraid she was going to lose her job or there was a threat of a removal from her job, there is absolutely no way that the Court can make that assumption.

* * *

But to speak to whether or not the juvenile protection division should be filing these things, collateral is a division — collateral review is a division of the same agency that we are with.[ 5 ] They also file post conviction. That is their sole job.

THE COURT: But this was carefully set up so that this was supervised differently, monitored differently. There is this whole Chinese wall theory that surrounds that unit for precisely this reason. As far as I can tell it does not exist within your juvenile unit. There are enough people that are troubled on the adult side that you have this specter of one unit, same office post convicting another lawyer in the same unit of that office. But, for a lot of reasons that happened and there was a Chinese wall built so that these ethical issues wouldn't be problematic.

One of the things that is of concern to me is it doesn't seem to have even been contemplated in this circumstance.

* * *

[T]o me, if you think there is a problem, refer it out, have someone independent of you all take a look at the file, whatever they think is appropriate. Then you don't have this specter of your office, which does have some oversight and review function, getting affidavits from a lawyer who stands to be impacted by how you perceive her performance, how you perceive her cooperation, how you perceive the whole matter.

[¶¶]

We hold that the juvenile court's order denying Elrich's Rule 11-116 motion to vacate is a final, appealable order. As to the merits, the court appropriately recognized that Elrich's ineffective assistance of counsel claims were a basis for relief under Rule 11-116. Furthermore, the juvenile judge's knowledge of the OPD's supervision program did not warrant her recusal from the case. The judge did err, however, in failing to consider whether Elrich had adequate representation or whether the evidence against him supported the finding that he engaged in a delinquent act. Finally, while the court had the discretion to appoint new counsel where a possible conflict of interest existed, the court erred when it required the OPD to panel the case to outside counsel. On remand, the juvenile court shall provide the OPD with the opportunity to avoid the potentially coercive situation by assigning an attorney to Elrich's case who could not conceivably exercise any influence or control over his delinquency counsel's employment. The court should then make findings as to Elrich's ineffective assistance of counsel and insufficiency of evidence claims.